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Thoughts on the Oral Arguments in the Dog Sniff Cases

This morning I attended the oral arguments at the Supreme Court in the dog sniff cases, Florida v. Jardines and Florida v. Harris. Based on the arguments, my guess is that the state will win one and lose one. The Court will probably agree that the Fourth Amendment was violated in Jardines, in which the officer brought the dog to the front door and the dog sniffed for drugs. On the other hand, the Court will probably rule that the Fourth Amendment was not violated in Harris because the training the dog received was sufficient. Here are some impressions from the argument, as well as my guesses to where the future majorities may be (which of course are worth the electrons you paid for them):

1. Florida v. Jardines

I think there was a majority of Justices who seemed to think it was a search to bring the dog to the front door to smell for drugs, although on which exact grounds wasn’t entirely clear. Justice Kennedy was clear and aggressive from the get-go that he did not agree with the Caballes argument that there is no reasonable expectation of privacy in the presence of drugs: He called it circular and repeatedly stated that the rationale “won’t work for [him]” when the drugs were hidden from plain view.

Justice Scalia also expressed great skepticism of the government’s view. Surprisingly, Justice Scalia thought it was clearly a Fourth Amendment search for an officer to go up to the front door with an intent to smell for drugs even if he had no dog: In his view, a homeowner impliedly consents to a friendly visit or a knock-and-talk by an officer but does not consent to an officer walking up to the front steps who intends to smell for drugs inside. This was a puzzling position for Justice Scalia to take, as he is the primary force behind the Supreme Court’s caselaw forcefully rejecting the relevance of an officer’s subjective intent in Fourth Amendment law (see e.g., Whren, Al Kidd). Also, as Justice Sotomayor pointed out, real police officers have dual intents: An officer who conducts a knock-and-talk is also looking for drugs inside. But Justice Scalia seemed to think intent was determinative here, following his footnote in Jones, and that entering the curtilage with intent to sniff (with or without a dog) made the conduct a Fourth Amendment search.

My sense is that there were enough Justices to sign on to the view that the officer entered the curtilage of the home and that there was no implied consent because what happened was far beyond the usual neighbor dropping by: This was a use of a trained dog who was used as part of a designed procedure that no homeowner would welcome. The only relatively clear dissent from that view I noted was Justice Alito, but it’s possible he might have the Chief, as well (and Justice Thomas was silent).

The potentially significant wrinkle is that the state and the U.S. argued that the lawfulness of the entry on to the front porch was conceded by the defendant in the Florida Supreme Court: The Florida Supreme Court focused on whether the use of the dog was a search, not whether the entrance on to the front porch was a search. But counsel for Jardines argued that this issue was not at all conceded below, and that it was litigated in the Florida Supreme Court and very much a live issue for the Justices. So if the issue was not conceded below, my expectation from the argument is that the defense would likely win the case on that issue. But if the issue was conceded, it’s hard to know what the Justices might do. They might DIG the case, which would inspire even more dog puns than the case has already.

2. Florida v. Harris

Whereas the Justices seemed very skeptical of the state’s position in Jardines, they seemed much more welcoming of the state’s argument — from same state, indeed made by the same attorney, Greg Garre — that the training of the dog in Harris was sufficient to create probable cause. There was a lot of skepticism (if not hostility, in Justice Scalia’s case) to the Florida Supreme Court’s approach to determining the reliability of dog sniffs, which seemed to provide for mandatory disclosure and close analysis of field performance records. Justices Kennedy and Scalia both suggested that dog sniffs should be treated like any other kind of case: The defense can cross examine the handler and ask about the dog’s training and then the Court can make a decision about probable cause. But there wasn’t any clear support on the Court for a detailed examination of field performance records, and certainly not in every case. Justices Sotomayor and Kagan were clearly concerned with the studies questioning the reliability of dog sniffs, though, and pressed Garre on the point.

On the whole, I suspect that the Justices will write a narrow opinion reversing. Specifically, they’ll reject the Florida Supreme Court’s apparent requirement that the government produce field performance records. My sense is that there was considerable support for the view that there was probable cause in this case — Justice Sotomayor came close to saying that directly in the course of a hypothetical, and I didn’t notice any particular disagreement with that. At the same time, I’m guessing that they won’t try to go into the details of exactly where the lines must be drawn, and I doubt they’ll want to come up with a clear rule as to what is or isn’t enough to satisfy the probable cause threshold. Instead, they’ll probably just leave it up to individual magistrates in individual cases. That’s my guess, anyway: As always, it’s worth the electrons you paid for them.